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Philadelphia Jury Awards $4,000 in Fen-Phen Trial A Philadelphia jury awarded five Utah residents a total of $4,000 on Friday for their claims that a weight-loss drug manufactured by the Wyeth pharmaceutical company damaged their heart valves. The Davis v. Wyeth trial was the third to conclude since the first four Fen-Phen trials in Philadelphia began July 19. One Fen-Phen trial is still under way before Common Pleas Judge Alfred J. DiBona Jr. Carolyn Short, a Reed Smith attorney and spokeswoman for the Wyeth defense lawyers, said closing arguments were expected today in that trial, which involves four plaintiffs from Pennsylvania. However, DiBona decided to bifurcate the lawyers’ closing arguments, Short said. That means lawyers would first conclude their liability arguments, and the jury will deliberate on liability. If the jury determines Wyeth was liable, lawyers would then conclude their arguments on whether the diet drugs caused the plaintiffs’ alleged heart-valve damage and whether damages should be awarded, Short said. “That said, it’s possible it won’t go to the jury [Wednesday],” she said. Progress was slowed earlier in the week when one juror became ill, but the trial is proceeding with the seven remaining jurors, Short said. Michael Miller of Miller & Associates in Alexandria, Va., is representing the plaintiffs, and Reed Smith attorneys Barbara R. Binis of Philadelphia and George E. McDavid of Princeton are defending Wyeth. Common Pleas Judge Nitza I. Quinones Alejandro presided over the three-week Davis trial. Galene Davis of Salem, Utah, was awarded $1,000, while plaintiffs DaNeise May of Herriman, Utah; Michelle Roberts of Provo, Utah; Lenis A. Rogowski of Lehi, Utah; and Bonnie S. Sidwell of Kaysville, Utah, were each awarded $750, according to a company press release. The plaintiffs were represented by Edward F. Blizzard of Blizzard McCarthy & Nabers in Houston. Peter T. Grossi Jr. of Arnold & Porter’s Washington, D.C., office defended Wyeth. Since the Fen-Phen trials began with 13 plaintiffs, Wyeth has settled with at least two – in one case after a jury awarded a Texas man $48,000 in the injury phase of a reverse-bifurcated trial. The second trial to conclude was before Judge Arnold L. New, and the jury returned a defense verdict. The lawsuits against the Madison, N.J.-based Wyeth allege that it was negligent in manufacturing the weight-loss drugs Redux or Pondimin without providing adequate warnings that the drugs could damage the valves of the heart by causing them to leak. The plaintiffs in the trials were from Pennsylvania, Utah and Texas, and they are among those who opted out of Wyeth’s national $3.75 billion class-action settlement of lawsuits brought by former users of the diet drugs, which were pulled off the market in 1997. - Melissa Nann Epstein Did Not Breach Settlement, Superior Court Says A condition of a settlement Alan Epstein reached with George Bochetto was that he write and publicize a letter of regret, but Epstein did not breach that settlement when he told this newspaper that the letter was not an apology, the Superior Court has ruled in an unpublished opinion. In Bochetto v. Epstein, a three-judge panel concluded that “a careful reading of the in-court transcript containing the oral settlement agreement calls for an expression of ‘regret on Epstein’s part,” and that Epstein’s comments “as published in The Legal Intelligencer acknowledged that expression of regret and did not violate the settlement agreement.” Both Bochetto, of Bochetto & Lentz, and Epstein, of Spector Gadon & Rosen, declined to comment for this article. The June 2001 settlement stemmed from a defamation lawsuit Bochetto brought against Epstein and others for statements Epstein made regarding two other underlying lawsuits, according to the opinion. Under the settlement terms, according to the opinion, the defendants in the defamation action were to pay $10,000 to Bochetto & Lentz, and Epstein was to write a letter of regret, which was to be submitted to The Legal for whole or partial publication. The newspaper published excerpts of the letter in a September 2001 article that included comments from Epstein and Bochetto. The article reported that Epstein “said the letter sent to Bochetto was not an ‘apology letter’ but was ‘a letter that said I regretted that he took umbrage to my comments.’” After that comment appeared in the paper, Bochetto sued Epstein for allegedly breaching the settlement agreement. The trial court granted summary judgment in favor of Epstein and the other defendants, according to the opinion. The Superior Court agreed with the trial court’s decision. “[Bochetto] alleges that, as part of the settlement agreement, appellees were prohibited from making any protest, comment or remark tending to dilute the force and effect of the ‘apology letter,’” the opinion states. “However, the settlement agreement contained no such prohibition. . . . In fact, the record reveals that all aspects of the settlement, including the letter, could be made public and that the parties were not prohibited in any way from talking about the settlement.” Moreover, the court added, “we find that Epstein’s comments were consistent with the terms of the settlement, and thus did not dilute its force and effect.” The panel included President Judge Joseph A. Del Sole, Judge Joan Orie Melvin and Senior Judge Phyllis W. Beck. (Copies of the 9-page opinion in Bochetto v. Epstein , PICS No. 04-1218, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.) – Melissa Nann

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